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Section Objective Understand the need for review. Describe a process for reviewing a license. Identify at least 2 types of clauses that often need review and be able to prepare licenses for legal review. This is not legal advice!

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Don’t sign anything you don’t understand! License agreements, MOUs, ClickThroughs, Click Wrap, etc. are legally binding documents. Know exactly what is being agreed to, and that you can fulfill the terms of the agreement. Don’t guess and don’t assume anything. Make sure your Office of Legal Counsel/ Procurement is in agreement. Ask questions!

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Office of Legal Counsel/Procurement Develop a good working relationship with your Office of Legal Counsel or Procurement Office. Discuss library issues and lingo with them. Keep them informed of issues in the library industry and items to watch out for in agreements. Ask them about needed legal requirements in agreements.

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Study! Get familiar with licensing terms and vocabulary. (see references noted in earlier slide). Review documentation on best practices and sample clauses. Keep up to date with discussions in the industry on licenses. Monitor listservs, read articles and books, attend workshops.

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Develop a Process Once you are familiar with terms and vocabulary and have read some ideas for best practices, consult with your Office of Legal Counsel or Procurement to develop your local best practices, what information they need up front for review (what the product is, how much it costs, etc.) and other local needs. Determine who can sign agreements, where they will be stored, who will have access and who will be responsible for enforcement and answering questions concerning the agreements.

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Discuss acceptable language Consult with legal counsel to see if they have standard language they want included in agreements. Discuss with legal counsel what will be considered acceptable language for standard clauses, such as, but not limited to: Authorized users- do you allow walk-ins? Are there limits on who may access your resources?

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More discussion points How will your institution be listed in agreements? Will it be the overall name of the institution, the library, the office? What are the acceptable forms of authentication on campus? (Shibboleth, or other) What constitutes your site? (campus, multi-campus) What language is needed to include remote users for distance education or other access? Governing Laws? (MD state institutions may only agree to laws of MD, or strike the clause). Tax Exemption? What language is standard on your campus for this. Some form of notice may be required by state law. Indemnification/ Limited Liability/Warranties and other such headache inducing clauses- Discuss what is and is not allowed within your legal frame work. For the most part Indemnification clauses are not allowed in state agreements. ADA and accessibility issues- Discuss requirements. (some possible language : shall ensure the Service complies with all Federal and State laws including, but not limited to, web accessibility standards governed by Federal disability laws. ) Early termination due to lack of funding by state or authorizing agency.- This is required in some places after the budget cuts of a few years ago. And the list goes on….

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Getting Started Remember- Requests made before agreements are signed are negotiations. Requests made after agreements are signed is begging. Understand every item in the agreement. Ask for any agreements early in the process, even before the price is agreed upon to determine red flags. There might be show stoppers that would prohibit your institution from signing. Include other staff who will be working with the technical set up and maintenance of the product to make sure there are no red flags from their standpoint. Know what you are licensing and what is needed. A streaming media product may have different uses than a standard database. Read the agreement completely once. Then, pick up the red pen and start making notes and striking clauses that are problematic. Develop a list of questions for the vendor. Decide with legal council/procurement if they would like to see the agreement with your questions and mark ups before it goes to the vendor to include their questions and comments, or have your discussions with the vendor first then send the agreement to legal counsel for their comments and requirements and back to the vendor. Each has their advantages and disadvantages.

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Working with the Vendor Be upfront about what are show stoppers and what are points for negotiations. Don’t assume they don’t know your state requirements. Have a good outline of why you need specific items added, changed or deleted from the agreement. Be willing to spend some time discussing the issues. Be knowledgeable. Ask questions! Don’t worry about looking odd. You will not be the first person to ask and you won’t be the last. Understand each and every clause in the agreement.

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Bring in the big guns when needed! Work with your legal counsel/procurement to develop a process for getting them involved in negotiations and discussions when needed. Sometimes it just takes one specialist talking to another to get it worked out. Caution! Ask your legal counsel/ procurement to run any final agreements by you before signing. Library lingo and processes might be an alien process to them and a simple word change can have big implications.

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Some clauses to consider Copyright, ILL, Scholarly Sharing, Course Packs, Course Reserves, MOOCs. What is important at your institution? In ebook licenses and digital media licenses some of these clauses can be really problematic or completely missing (especially ILL). Make sure you have the rights you need to get the most use from the product, or at the very least you can live with what is the final offer. Perpetual Access and Archival Access. What are the guarantees? Can you accept them? Notification to users of authorized uses. Can you actually do what you are agreeing to? Read this carefully. Don’t commit your institution to a labor intensive process that is not already in place. Usage statistics. Make sure the agreement specifically notes that they will be available, in what format and any other information you need. If it isn’t listed in the agreement, they are not required to supply. Most will, but be aware smaller resources may not have considered this. Termination clauses. Note method, timeframe and financial obligations. Fees and schedule of contract. Important to have discussions on price and renewal options as part of the contract. Can be an appendix, but get it in as part of the agreement. And the list goes on…..

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Information not part of document Be wary of links to urls in agreements. If the actual document being linked to is not attached as part of the agreement, what is to stop the document at the url from being changed without notice? Have the documents attached as part of the agreement. If you are contracting with a third party and they are referring to agreements you haven’t seen, or are not a part of the agreement, require those noted agreement be available and if appropriate have them as an appendix to your agreement. Know all the terms up front.

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Sample Clauses In a number of the links supplied earlier, there are sample clauses and sample documents for review. The California Digital Library and others note what they consider good language. Some may be of use to your local setting and some not, but they will give you a good framework for reviewing language and suggestion edits. Monitor the LibLicense listserv. License terms and issues with agreements are often discussed there. Attend meetings, such as this one and NASIG, to network with others for ideas.